Attorney General Eric Holder recently gave a speech in which he said the U.S. military can execute American citizens without trial, because “'[d]ue process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security.” Holder added, “[t]he Constitution guarantees due process, not judicial process.”
Holder additionally said, “The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.“
The Attorney General laid out the conditions that allow for an execution without trial:
“First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.”
The first two criteria assume the target is, in fact, guilty and relies solely on the input of the Executive Branch, without judicial or Congressional oversight, and it is impossible for the operation to be conducted in a manner consistent with applicable laws of war. Article 147 of the Fourth Geneva Convention says that willful killing and willfully depriving a person of the rights of fair and regular trial are grave breaches of the Convention and thus war crimes.
Holder does not explain how due process is ensured absent the use of a judicial court. To put it another way: How can anyone defend themselves against accusations of being a terrorist without the ability to face their accusers in court?